Opinion
01849-2009.
Decided August 3, 2010.
HON. THOMAS J. SPOTA, District Attorney, Suffolk County, By: Jonathan B. Manley, Esq., Assistant District Attorney, Economic Crime Bureau, Hauppauge, NY.
JOHN H. LOTURCO, ESQ., Attorney for Defendant, Huntington, NY.
Pursuant to the May 18, 2010 Order of the Court, a combined pre-trial hearing was conducted on June 23, 2010. The hearing was conducted pursuant to Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248 (1979), Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 (1961) and People v. Huntley, 15 NY2d 72, 255 NYS2d 838 (1965). After careful consideration of the evidence at hearing, it is the determination of the Court that there was probable cause for defendant's arrest and that defendant's motions to suppress are denied.
Findings of Fact
The only witness to testify at hearing was Suffolk County Police Officer Stephen Krolikiewicz, Shield 5623. P.O. Krolikiewicz's testimony was consistent and credible in all respects.
On September 12, 2009, P.O. Krolikiewicz was assigned to uniformed patrol in the area of Mastic, Suffolk County, New York. This area encompasses the Poospatuck Indian Reservation, which sells tax-exempt cigarettes. At approximately 9:10 a.m., he noticed a van in the parking lot of one of the cigarette retail stores on the Reservation. The van's high roof and customized features attracted the officer's attention.
One hour later, as he was driving northbound on the William Floyd Parkway, P.O. Krolikiewicz noticed a van in front of him bearing a Georgia license plate. Upon observing the customized paint work, pin striping and high roof, the officer realized that it was the same van that he had seen when driving by the Reservation, which was approximately two miles away. He also observed that the windows of the van had shades and were excessively tinted. (A subsequent tint meter test showed 36% light transmittance, well below the 70% visible light transmission required by New York State law)). After the driver failed to signal a lane change while entering onto Sunrise Highway (State Road 27), P.O. Krolikiewicz effectuated a traffic stop.
Upon approaching defendant, seated alone behind the steering wheel of the van, the officer asked for his license and registration. Defendant produced a Georgia license. P.O. Krolikiewicz asked defendant about his point of origin and his destination. Defendant replied that he was coming from the Reservation and that he was going to Brooklyn. At this time, P.O. Krolikiewicz observed two black plastic bags behind the front seats. One bag, located on the floor behind the front passenger seat, was two feet high, one and a half feet wide and with what appeared to be a rectangular shape inside the tightly knotted bag. The second bag was also closed and located behind the driver's seat. P.O. Krolikiewicz noticed an overwhelming smell of tobacco and of dirty black plastic bags. Although made of a thicker commercial grade plastic, the black bags bore no distinctive markings. Based on his training from the New York State Petroleum, Alcohol and Tobacco Unit as well as his eight years of experience, P.O. Krolikiewicz believed that the black plastic bags contained master cases of untaxed cigarettes.
The officer next ran a check of the license plate and learned that defendant was on parole. He returned to the car and asked defendant "Are those cigarettes?" Defendant responded "Yeah, I just spent like twenty grand." P.O. Krolikiewicz proceeded to arrest defendant for violations of the New York State Tax Law and call for assistance. Defendant was placed in the officer's police car.
The parties concede that, subsequent to defendant's arrest, a warrantless search of the van was conducted at the roadside. After back up had arrived, P.O. Krolikiewicz opened the passenger side door of the van. He testified that he proceeded to rip open one of the bags located inside of the van to confirm its contents. Inside this particular bag was a master case of untaxed cigarettes.
Defendant's van was transported to the Seventh Precinct. A search at the precinct yielded a total of ten plastic bags and ten master cases of untaxed cigarettes.
The Dunaway Hearing
Pursuant to Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248 (1979), it is the determination of the Court that defendant's arrest was based upon probable cause.
P.O. Krolikiewicz, observing violations of the NYS Vehicle and Traffic Law [VTL § 1163(b) Failure to Signal a Turn and § 375.12-a(b)(2)Operating a Motor Vehicle with Tinted Windows], had an articulable and reasonable basis upon which to stop and approach defendant's vehicle.
The observations leading up to the arrest for the NYS Tax Law violations were made by an officer with eight years of experience. P.O. Krolikiewicz had training from the New York Petroleum Alcohol Tobacco Bureau as well as approximately fourteen prior experiences related to similar arrests. He observed the two bags and noticed an overwhelming smell of tobacco and plastic. He had earlier observed the same vehicle in the parking lot of a cigarette store on the Reservation. Defendant admitted that he was in possession of cigarettes and had just spent $20,000. Based upon the officer's credible and consistent testimony, coupled with all of the surrounding circumstances at the scene, there was reasonable cause to believe that a crime had been committed. The Court concludes that the People have presented sufficient evidence to meet their burden of going forward and establishing probable cause for defendant's arrest.
The Mapp Hearing
The Court finds that the search was incidental to a lawful arrest.
Pursuant to Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710 (2009), the People argue that the vehicular search was lawful because it was reasonable to believe the vehicle contained evidence of the offense of arrest and was therefore an exception to the warrant requirement. In opposition, defendant argues that the master cases were not in plain view and that the contents of the bags were not immediately apparent. Defendant further argues that the People have failed to establish any exceptions to the requirements of the plain view doctrine. Arizona v. Hicks, 4 U.S. 321, 107 S.Ct. 1149 (1987), People v. Diaz, 81 NY2d 106, 595 NYS2d 940 (1993), People v. Vega, 276 AD2d 414, 714 NYS2d 291 (1st Dept. 2000).
Based upon P.O. Krolikiewicz's extremely credible and consistent testimony at hearing, the Court determines that, after the arrest had been made, P.O. Krolikiewicz had reason to believe that the van contained evidence related to the crime for which defendant was arrested. Arizona v. Gant, supra, People v. Belton, 55 NY2d 49, 55, 447 NYS2d 873 (1982). The search was not exploratory in nature and was contemporaneously executed. The officer had a reasonable basis to believe that the van contained evidence of the crime based upon the following: (1) The officer's observations of the pungent odor and unique shape of the packaging he saw within the van; (2) The defendant's statements made prior to the arrest; (3) The officer's training and experience, as testified to at hearing, that he recognized the type of packaging and the shape of master cases and that it is "impossible" to come across a master case containing taxed cigarettes because the cases are sealed; and (4) Defendant's temporal and geographical proximity to the retail smoke shop on the Poospatuck Reservation, where the officer had observed the van in the parking lot approximately one hour earlier. For these reasons, the search conducted of defendant's vehicle was permissible.
In reaching this decision, the Court has considered defendant's argument that the incriminating nature of the objects in the van were not immediately apparent. The case law relied upon by defendant, however, is distinguishable from the unique facts and circumstances of this case.
Defendant's arrest was not predicated solely upon observation of thick plastic bags that "could have contained any number of noncontraband items", People v. Monforte, 57 AD2d 576, 393 NYS2d 436 (2nd Dept. 1977). See also People v. Voner, ___ NY3d ___, 2010 N.Y.Slip Op. 05803 (2nd Dept. 6/29/2010). There was detailed, additional evidence, as set forth above, that was personally noted by the officer to establish probable cause and to justify the search.
Defendant's motion to suppress evidence of the cigarettes recovered from the van after the defendant's arrest is denied.
The Huntley Hearing
Pursuant to People v. Huntley, 15 NY2d 72, 255 NYS2d 838 (1965), defendant seeks suppression of the statement, "Yeah, I just spent like twenty grand."
The Court finds that defendant was not in custody at the time that the statement was made and the officer's single question, "Are those cigarettes?" was merely investigative. Based upon the credible evidence at hearing, the Court finds that the officer's initial inquiry of defendant was investigative rather than custodial in nature. The requirements set forth in Miranda v. Arizona, 384 U.S. 436, 477, 86 S.Ct. 1602 (1966) are "not intended to hamper the traditional function of police officers in investigating crime . . . [such as] general questioning of citizens in the fact-finding process." There was no evidence at hearing that defendant's statement to P.O. Krolikiewicz was the product of custodial interrogation. An individual in defendant's position could not have reasonably considered himself in custody while sitting in his car during a traffic stop, People v. Yukl, 25 NY2d 585, 307 NYS2d 857 (1969), cert. denied 400 U.S. 851, 91 S.Ct. 78 (1970). There was no evidence that defendant was threatened, restrained or abused. There was no legal requirement that Miranda warnings be administered.
Defendant's motion to suppress the statement to P.O. Krolikiewicz is denied.
The foregoing shall constitute the Decision and Order of the Court.